International Administrative Law Centre of Excellence
JUSTICE WITHIN IO’s
London, 17-18 October 2013
HUMAN RIGHTS & INTERNATIONAL
ADMINISTRATIVE LAW
Presented by:
Edward Patrick Flaherty
Juris Doctor, Admitted to Practice Law before US Supreme Court & in the State of MA
Registered with the Geneva Ordre des avocats as a qualified foreign lawyer
Senior Partner, Schwab, Flaherty & Associés, Geneva, Fribourg & Istanbul
tel: +4122 840 5000
fax: +4122 751 8226
flaherty@sfalegal.com www.FLAHERTYLAWGROUP.com
General Counsel/Founder, Centre for Accountability of IO’s (CAIO)
www.caio-ch.org
Co-Founder, IO Watch
www.iowatch.org
© 2013, Schwab, Flaherty & Associes; All rights reserved.
MOST IMPORTANT
INFORMATION OF THE DAY
• These seminars are intended to be used for general
informational purposes only
• Every case is different--what may be proper
advice in one person’s case may be the worst
possible advice in another case
• Any staff member who anticipates a serious
conflict with the Administration (such as nonrenewal of contract, inaccurate PERs, mobbing,
etc.) should seek assistance from the Staff
Council/Association and/or legal counsel as soon
as possible--its better to be too early seeking
assistance than being too late.
Our Session Topic:
Are IO’s Subject to Human Rights Law?
• Pretty simple, straight-forward question
• The common sense reply is, why of course—
– IO’s are created by international law
– Human rights law is a subset of international law
– Therefore, as creatures of international law, IO’s are
subject to human rights law
• But ask the legal counsel of an IO, and the typical
reply is usually: « As IOs are not signatories to
international human rights covenants or
conventions, IOs are not subject to such
instruments
And What Sayeth that Renowned
Oracle, the ILOAT? (cue sarcasm!!)
• The typical legal answer—essentially on one
hand IOs are subject to International law, but on
the other hand they are not—to wit:
• One the one hand--Judgment N°. 1369, c 15—“The Tribunal must enforce
the law within the full ambit of the competence its Statute vests in it. For
that purpose it will apply any material rule of law, be it international or
administrative or labour law or any other body of law. The only sort it will
not apply is national law, save where there is express renvoi thereto in staff
regulations or contract of employment: see Judgment 1311 (in re Guerra
Ardiles) under 15.
• On the other—Judgment N° 2662 c 12: "Reliance on the (EHR)
Convention is misplaced as it is not applicable to international
organisations. The complainant's rights are those derived from the Staff
Regulations and Staff Rules and from the general principles of law
applicable to such organisations."
And now, la pièce de résistance:
•
IOs are subject to human rights instruments, but not
really:
– Judgment N°. 2292, c 11: Even if "the Member States of the
[Organisation] are all signatories to the European Convention on
Human Rights, the Organisation [...] as such is not a member of the
Council of Europe and is not bound by the Convention in the same
way as signatory states. Nevertheless, the general principles
enshrined in the Convention, particularly the principles of nondiscrimination and the protection of property rights, are part of
human rights, which, [...] in compliance with the Tribunal's case
law, apply to relations with staff."
– The problem of course is in the practical application of such
standards to IO s by the ILOAT—know of no case where the
ILOAT has expressly applied a principle of human rights law
against an IO—the ILOAT’s recitation of such rights is sadly
illusory in practice
•
•
And What of Those Other Pillers of
Probity, the UNDT and UNAT?
The UNDT/UNAT can talk the talk, but do not walk the walk
In one of its first judgments, Tadonki v SG (Case N° 2009/16),
the UNDT started out on the high road:
– “8.2.4 The European Court of Human Rights has ruled that the right to continue in
professional practice is a civil right .There is no reason why that principle should not be
applicable to all contracts of employment in any civilized society. It follows that disputes
arising out of a contract of employment should be dealt with according to fair procedures and
the provisions guaranteeing the right to work should be interpreted according to international
human rights norms.
– 8.2.6 The Tribunal also notes that the Heads of State and Government, who gathered at the
United Nations Headquarters in New York from 14 to 16 September 2005, reaffirmed their
faith in the United Nations and their commitment to the purposes and principles of the Charter
of the United Nations and international law. They also resolved to ensure full respect for the
fundamental principles and rights at work.
– 8.2.7 It follows therefore that the rules and regulations of the United Nations relating to
employment should be interpreted and applied in a manner that takes into account the
international human rights standards. They should not be narrowly construed in view of the
well established principle that statutes should, if possible, be construed so as to conform to
international instruments “ (emphasis added)
• Sadly, the UNDT/UNAT have not lived up the high standards set
out for the UN internal justice system in Tadonki
What do more credible sources say?
• American Law Institute’s Restatement of the Law
(Third), The Foreign Relations Law of the United
States opines: "Subject to the international
agreement creating it, an international
organization has [...] (b) the rights and duties
created by international law or agreement."
(Restatement of the Law (Third), The Foreign
Relations Law of the United States § 223
(American Law Institute ed., 1987—emphasis
added).
What do more credible sources say?
(cont.)
• A number of scholars adhere to the idea that IOs are
bound by general international law. Since international
organizations are constituted by the common will of
states through an act of transferring powers to them,
the resulting legal creatures cannot enjoy more powers
than their creators--"Nemo plus iuris transferre potest
quam ipse habet" (‘No one can transfer more rights
than one possesses.’).
• Thus, the member states of an IO cannot collectively
"opt-out" of customary law and general principles of
law by creating an IO which would no longer be
bound by what restricted its founding members.
What do more credible sources say?
(cont.)
• Another line of argument stresses the status
of IOs enjoying legal personality under
international law. The fact that IOs are
generally perceived to enjoy international
legal personality implies that they have
rights and duties under international law
and are subject to international law. In other
words, an IO is "subject to" international
law because it is a "subject of" international
law.
What do more credible sources say?
(cont.)
• This last line of argument was very clearly
expressed by the ICJ in its Advisory
Opinion on the Headquarters Agreement
between the WHO and Egypt, wherein it
stated that "international organizations are
subjects of international law and, as such,
are bound by any obligations incumbent
upon them under general rules of
international law [...]." (Interpretation of
the Agreement of 25 March 1951 between
the WHO and Egypt, Advisory Opinion,
1980 ICJ Rep. 73, at 89—emphasis added).
What do more credible sources say?
(cont.)
In Waite and Kennedy v. Germany, (Application no.
26083/94) and Beer and Regan v. Germany (Application no.
28934/95), the ECHR held in 1999 that:
• “The Court is of the opinion that where States establish
international organisations in order to pursue or
strengthen their cooperation in certain fields of activities,
and where they attribute to these organisations certain
competences and accord them immunities, there may be
implications as to the protection of fundamental rights. It
would be incompatible with the purpose and object of the
Convention [for the Protection of Human Rights and
Fundamental Freedoms], however, if the Contracting
States were thereby absolved from their responsibility
under the Convention in relation to the field of activity
covered by such attribution.
What do more credible sources say?
(cont.)
• More recently, in Sabeh El Leil v France (Application no.
34869/05, 29 June 2011) the ECHR found that by applying
the doctrine of State immunity without giving relevant and
sufficient reasons and without consideration of recent
developments in international law, the French courts had
impaired the applicant’s right of access to a court in breach
of Article 6.
• The case concerned an employee (the applicant) of the
State of Kuwait, a French national, who had worked as an
accountant at the Kuwaiti Embassy in Paris for 20 years.
The Court found that his role was neither of a diplomatic
or consular nature. Rather he performed the duties of
accountant, and later head accountant, within the embassy
itself.
What do more credible sources say?
(cont.)
• Although Sabeh involved a sovereign state rather than an IO,
its reasoning logically should be applied to IO’s using
immunity to deny a staff member’s access to a local court
over an employment dispute, except where the staff member
is performing “sovereign functions”—remember -"Nemo
plus iuris transferre potest quam ipse habet".
• Several cases now pending before the ECHR arising out of
IO employment disputes (EPO, UNDP) have been held
preliminarily admissible, and will soon likely result in a
more definitive statement on the application of the Sabeh
principle to IOs (at least within the purview of the ECHR):
– Klausecker v Germany (Application # 415/07--EPO)
– Perez v Germany (Application #15521/08--UNDP).
Another Interesting Case to Watch
• Last week, a class action civil suit was filed in US Federal
District Court for Southern Manhatten against the UN on
behalf of the victims and survivors of a cholera epidemic
allegedly caused in Haiti during 2011 by Nepalese UN
peacekeepers
• 8500 have died to date, and continue to die
• 750,000 were seriously sickened by the cholera
• Source of cholera has been pinpointed on a DNA level
• UN refuses to invoke compensation board foreseen by
Article 29 of the UN General Convention on Privileges and
Immunities
• UN has asserted its immunity as its sole defense
• The scope and size of the victim pool may well seal the end
of UN immunity/impunity
By what sources of Int Human
Rights Law are IOs bound?
(not exhaustive)
• Primary Sources:
–
–
–
–
•
Int Covenant on Political and Civil Rights
Universal Declaration of Human Rights
European Convention on Human Rights (at least within Europe)
other Jus cogens principles of international law
Secondary Sources
– Core ILO Labor Standards in particular:
•
•
•
•
N° 87—Freedom of Association and Right to Organise
N°. 98—Collective Bargaining
N°. 100—Equal Pay
N°. 111—Anti-discrimination Convention
– Int Covenant on Economic, Social and Cultural Rights
Conclusions
•No serious legal scholar or practitioner can reasonably
dispute today that IOs, notwithstanding the fact that they
are generally not signatories to most primary and/or
secondary human rights instruments, are subject to such
instruments by virtue of their status as creatures of
international law
•More and more national and international courts are
corroborating this conclusion in cases brought against
IOs by injured employees and innocent third party
victims (but not the ILOAT!!)
•The trend is towards limiting IO (like State) immunity
•IOs ignore this trend at their own peril
End of Presentation—
Thank you for your attention!
• Questions can be asked in the breakout or
plenary sessions
• Suggestions/comments welcome!
• A copy of this PP presentation will shortly
be posted to the COE website and
www.flahertylawgroup.com